September 30, 2014

"I have a question: if an opposite-sex couple is in the middle of having seemingly normal sex, but at some point the man stops affirmatively consenting..."

"... or at least the woman isn't able to 'ensure' he's still affirmatively — what is this law ordering the woman to do, exactly? Push him away? (Notice that the law is written in explicitly gender-neutral terms, with the male and female pronouns, so surely it is supposed to apply to both genders.)"

A question about the new California "affirmative consent" law.

I'm not going to answer that question, posed by my son John, facebooking my "Jerry Brown signs a law" post from yesterday. I'm going to say something more general about legislation.

Those who are actually writing and reading the text of a bill — and I'm sure most legislators don't study the text they vote on — are focused on the problem they think they are solving. Obviously, there are also distortions in the perception of the problem and whether the solution will work, and we should also suspect that legislators are lying about what problem their solution is supposed to fix, but what I want to talk is about how legislators can fail to picture applications of the text to things that are not part of what they think is the problem they think they are solving.

This is especially so when legislators think they are solving a women's problem and simultaneously trying to avoid violating the requisites of equal protection. They produce some strange text, and equal protection will require that text to be applied equally to men and to women.

83 comments:

Alexander said...

Men aren't rally people,people anyway, so who gives a shit?

buwaya puti said...

The law is a blunt instrument for this and many other reasons. Hence fewer laws covering fewer aspects of human life are best. We can make our own informal arrangements for the rest.

chickelit said...

It's not just the text of what they vote on -- it's the ramifications of what gets rammed through as well. Think Prohibition.

David said...

"what I want to talk about how legislators can fail to picture applications of the text to things that are not part of what they think is the problem they think they are solving."

Can't succeed if you don't really try, can you?

Brando said...

I can't wait to see such scenarios make their way through court (and they will, as soon as the schools have to start deciding whether to expel or not expel students charged under this new standard).

California deserves every bit of this. Governor Moonbeam was a disaster in the '70s, so three decades later they decide to give him another chance. Once Tech Bubble Two, Electric Boogaloo (sorry) bursts, that state is going to be in some serious hurt.

Mark O said...

Whatever you do, don't answer your son's valid question.

jacksonjay said...

...equal protection will require that text to be applied equally to men and to women.

Bwahahahahahahah!

Kylos said...

Better than nothing is a high standard.

David said...

In California, your partner better be yelling "YES, YES" all the way through.

I don't know if I could handle the pressure.

Paul said...

Ah.... I bet the couples need a 'safe' word!

Yes, when bumping pelvises they need a word that signals them to stop.

Maybe,, 'MOONBEAM!! MOONBEAM!!!'

Yes, I named it after Jerry Brown.

Just shout, 'MOONBEAM!!' folks, and everything will come to a halt.

Either that or just say, "I have herpes".

ngtrains said...

I thought that a primary function of legal training was to look at unanticipated problems caused by laymen writing contracts and laws. That's why we 'need' attorneys.

But most legislators are attorneys. Did they ever attend these courses? or pass the bar exams that did not really require this learning.

Or is legislation written my various committee members who do not have legal training?

Bob Ellison said...

They produce some strange text, and equal protection will require that text to be applied equally to men and to women.

No. That might be true in a world of blind justice, but that's not the world we have.

Boys and men will always be held to higher standards than girls and women. Boys and men will be convicted wrongly at higher rates than girls and women.

You appeal to no power when you ask for equal application among genders.

RecChief said...

"are focused on the problem they think they are solving"

Since you asserted yesterday that the 1 in 5 statistic is false, what problem do they think they are solving?

Even if they think they are solving a problem, doesn't it behoove the citizenry to point out that this law subsumes basic rights? If there is an "epidemic" of campus sexual assault, isn't it in the best interest of the university as well as the students to have the criminal process in place rather than a university disciplinary board?

Shouldn't there be more discussion on whatever "problem" the writers and supporters of this legislation claim to be addressing as well as the cons of how it's written? Not ot mention the consequences of how it's written? Rather than "let the process work, there will be problems that will be addressed"?

If it's assault, then any claims should be handled by the criminal justice system. Why set up a parallel process for what should be a criminal justice problem? Why the redefinition of what constitutes a sexual assault? why the blase attitude about that from a law professor? I expect the attitude to change when it's gays and lesbians getting caught up in it.

Fritz said...

A strictly hypothetical question, since no man would.

RecChief said...

Mark O said...
Whatever you do, don't answer your son's valid question."


Bullseye!

Rocketeer said...

"The nature of man is intricate; the objects of society are of the greatest possible complexity: and therefore no simple disposition or direction of power can be suitable either to man’s nature, or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitutions, I am at no loss to decide that the artificers are grossly ignorant of their trade, or totally negligent of their duty." -- Edmund Burke, Reflections on the French Revolution

gspencer said...

CA is through-and-through Democrat. Remind me again of which political party is incessantly accused of wanting to enter the bedroom?

DrMaturin said...

I have kissed my wife while she was sleeping. Wouldn't that be considered sexual assault according to this law?

RecChief said...

"Boys and men will be convicted wrongly at higher rates than girls and women."

Convicted by whom? Not a court. In a court, you have the right to counsel, to cross examine witnesses for the prosecution, introduce evidence and witnesses on your own behalf. This looks like none of that is available to the accused. And people don't see what a radical departure from our professed system of justice this is.

Where the fuck is John Adams when you need him?

cubanbob said...

This piece of moralistic idiocy is indicative of a legislature that can't deal with the real problems of the state and thus goes through the motions of passing legislation just to show they are doing something.

tim in vermont said...

Alexander is right.

gerry said...

...we should also suspect that legislators are lying about what problem their solution is supposed to fix, but what I want to talk about how legislators can fail to picture applications of the text to things that are not part of what they think is the problem they think they are solving.

So, they are liars and incompetents. Yet we want MORE laws?

We are freaking doomed.

Anonymous said...

Quick ejaculation seems like a good strategy going forward.

Alexander said...

Remember when Democrats used to sneer about how those stodgy tradcons wanted to have government in your bedroom?


Lzozololololzoz.

Skeptical Voter said...

Just what the heck is government doing in our bedrooms?

Hagar said...

When I lived in Illinois many years ago, I was told that at the end of a legislative session, the governor's staff would go through all the bills and divide them into piles - one for bills they thought he should sign, one for bills they thought he should veto, and the third - and largest - pile for bills so badly written they did not know what to make of them.

Is there not a civic duty on the part of the executive to veto such bills?

Anonymous said...

"Honey, did you finish already? So soon?"

"Yes, and also withdraw my consent to any further sexual activity tonight."

Kylos said...

I tend to think women would also be far more likely to violate affirmative consent than they would negative consent (is there something better to call this).

So you might think this will primarily affect men when a woman regrets an encounter, but the man will have a much easier time countering by pointing out that she did it too. To me, it seems like a law that is designed to strongly discourage a specific form of sexuality that is deemed undesirable (casual sex). So it seems odd that those who oppose other sorts of laws designed to discourage other types of sexuality would not have a problem legislating morality in this way.

Birkel said...

Why must the couple in question be opposite-sex? For what valid reason does the question not act inclusively of all relations. For example, in group sex must each involved person vocalize their intent to participate continuously so that each other participant would be able to receive the communication?

I like seeing the sausage of legislation made so I can -- yet again -- give witness to why government is a wasteful morass.

Alexander said...

Remember children
It now takes three to tango
Man, Woman, Lawyer

Happy sex noises
Turned into legal nightmare
For man named No-ah

Loving Family
Had children taken away
For bedtime kisses

Rape - so serious
Better call in the big guns
Freshman counselor


tim in vermont said...

One solution would be to surgically implant a camera in every man's penis that would be activated whenever it was 'un-holstered,' so to speak.

Fucking men.


The Drill SGT said...

I want to talk about how legislators can fail to picture applications of the text to things that are not part of what they think is the problem they think they are solving.

Note this law doesn't actually criminalize anything. It just mandates a standard for the kangaroo College proceedings.

but back to your question. The simple answer is to mandate the application of such legislation to all California Government employees and office holders. Start Kangaroo tribunals to try employees if their significant others complain, even years later. If found guilty, you lose your Job, or are expelled from the Legislature...

Think that won't get the law repealed?

mccullough said...

Only missionary position will be allowed. So the man must always be able to withdraw to withdraw his consent.

Brando said...

"Just what the heck is government doing in our bedrooms?"

See, you don't understand. This isn't government in our bedrooms, even though they are regulating exactly what constitutes consensual sex and prohibiting whatever doesn't fit their new standard. Far from it!

Government in our bedrooms only applies when some fuddy duddies try to argue that they shouldn't have to subsidize another person's bedroom activities.

This may sound a bit confusing.

Amy said...

First point - Althouse has the best commenters anywhere.

Second - this whole issue is ridiculous and any reasonable person knows it.

Third - Reading these comments is comic relief to me in the midst of my busy day working, to provide half my income to the government to come up with inane projects like this.
So it all comes full circle.

Thanks to all!

tim in vermont said...

I too, remember the days when Democrats were dedicated to "keeping the government out of our bedrooms" and out of the dealings between a "person and her doctor."

Men, not being "persons" anymore than an unborn baby is.

Kevin said...

Simple rules for any male accused under this law (they may pretend that it is gender-neutral, but nobody believes that).

Get a lawyer. The university will tell you can't have a lawyer. Ignore them.

Any time you are summoned to one of the university's star chamber proceedings, bring your lawyer. Refuse to attend the proceedings without your attorney. Immediately request an injunction from a local court when the university refuses to allow your lawyer to attend.

Most importantly, sue. Don't just sue the university - sue personally all the university administrators involved in this process, all members of the "disciplinary board" "hearing" the case, etc., etc. etc.

Nothing will put a stop to this faster than university administrators and other employees incurring personal legal liability as a result of participating in these proceedings.

Alexander said...

Tim in Vermont,

John Adams defined it, but I don't know what the pithy Greek word would be for 'government by tyranny of the petticoat.'

Smilin' Jack said...

This is such an excellent law that it would be unconscionable to restrict its benefits to college students. It should apply to the entire population.

One problem, though, is that mere oral agreements are notoriously unreliable in law. Written consent, properly notarized, to each step of the process would be a step forward. However, there remains the problem of ensuring that consent is continuously ongoing. The only solution I can see is to videotape everyone's sexual activity at all times and places and make the tapes available for public evaluation and discussion in the event of a dispute. Protecting drunken sluts is everyone's responsibility.

Bob Boyd said...

I think crude, clunky, Soviet style technology is the answer to this Soviet style trend in our culture.

All campus dorm room beds should be fitted with an Affirmative Sexual Consent (ASC) unit. This would consist of a panel with six large light bulbs, three red, three green, and three large, red, panic buttons that can be slapped down like on a game show.
Consensual sex commences when all parties have turned on their preassigned green light bulb.
If at any point a participant finds themselves no longer affirmatively consenting, slapping their red panic button will turn on a red light bulb and a very loud buzzer will sound. At this signal all sex must stop immediately unless and until the green lights are turned back on.

There are enough bulbs for a threesome (Dorm bed max capacity. If four or more people are having sex in a tiny dorm room bed, consent can be presumed)
Of course ASC units are only a stop gap measure until we get to the point where all student sex will take place before a properly convened quorum of the appropriate committee.

MadisonMan said...

To answer Young Althouse's question, the sensible thing to do would be for the woman also to withdraw consent.

Renee said...

I though men don't get injured/pull a muscle during sex until their 40s?

campy said...

"In a court, you have the right to counsel, to cross examine witnesses for the prosecution, introduce evidence and witnesses on your own behalf."

For now.

Birkel said...

What happens when the woman withdraws her consent because she detects the man is about to finish and she's not ready for the encounter to be over?

Must he stop mid-ejaculate?
Is that possible?

Anonymous said...

This law is a gift to California "townies".

Ann Althouse said...

"I have kissed my wife while she was sleeping. Wouldn't that be considered sexual assault according to this law?"

No. The law defines "affirmative consent" and require that it be the standard for colleges and universities that accept money.

Unless you're a college student, this doesn't apply to you.

In any case, all the definition would say is that you failed to get affirmative consent.

furious_a said...

If found guilty, you lose your Job,...

...and forfeit your gold-plated state employees' pension. That'll square this sh*t post-haste.

Conserve Liberty said...

1. OK - sure. When is this coming to your local High School?

2. "I'm not in the mood tonight," takes on an entirely different dynamic when applied in a gender-neutral fashion.

Skipper said...

Is there any aspect of human life that is sufficiently intimate or personal or trivial to evade governmental regulation?

Peter said...

"Why set up a parallel process for what should be a criminal justice problem?"

So-called "women's advocates" have been insisting for decades now that women just don't lie about these things.

Once one assumes any man (tortured gender-neutral language notwithstanding) who is accused is almost surely guilty, isn't the "why" obvious?

furious_a said...

Meanwhile, over in the Central Valley, the most productive agricultural land in the world dries up and blows away.

And this.

Priorities.

gerry said...

Is there any aspect of human life that is sufficiently intimate or personal or trivial to evade governmental regulation?

Not if you are a progressive.

Although I am wondering if this law applies to same-sex sex. I mean it being gender-neutral and all.

Also, is it species neutral, too?

kimsch said...

What should happen is a dramatic decrease in male enrollment at any California school that accepts public funds.

This isn't like revoking one's invitation to a vampire being in your home. The other person isn't instantly drawn outside the room/house/what-have-you.

libertariansafetyguy said...

At what point mid-coitus that affirmative consent is revoked or can no longer be assume does rape begin? Can this scenario occur: "you may not have noticed but I revoked consent by not saying 'yes, yes' 10 minutes ago. Since that time, you've been raping me." I think men would be wise to launch an offensive offensive and make these claims. Clog the courts would claims that will force the courts to address this silly law.

Alexander said...

"Unless you're a college student, this doesn't apply to you." ~ Althouse

Yeah, for now.

If you like your non-college student sexual consent standards, you can keep your non-college student sexual consent standards.

Forbes said...

This legislation is what Democrats believe to be staying out of the bedroom...

ROTFLMFAO!

The Drill SGT said...

"Unless you're a college student, this doesn't apply to you." ~ Althouse

20% of College girls are sexually assaulted by college men.

surely those college men are more barbaric with the local non-college girls, who weren't smart enough to get in.

We can't have second class women. All women are entitled to the same protections the elite wimuns getts

FullMoon said...

DrMaturin said...

I have kissed my wife while she was sleeping. ......
9/30/14, 10:06 AM


You're not the only one.

jono39 said...

Help! We have been taken over by MORONS. Close the colleges immediately. Make work or make-work mandatory. And why are there no rules for masturbation?

Fritz said...

"This law is a gift to California "townies"."

Hey, I married one. Best decision I ever made.

buwaya said...

This is how I remember college -

http://merryfarmer.files.wordpress.com/2012/07/wild-medieval-students.gif

and this -

http://en.wikipedia.org/wiki/Alcohol_use_among_college_students#mediaviewer/File:Corps_Brunsviga_G%C3%B6ttingen_-_1837.jpg

The trouble today is the women showed up to ruin a perfectly fine thing. THEY cant just go and get drunk, do stupid things, and repent (eventually). Whatever trouble they get into becomes someone else's problem.

Anonymous said...

@ Ann Althouse -

In regard to what problems the lawmakers thought they were solving - The co-sponsor of the bill was asked "How does one actually prove they had attained affirmative consent".

Her reply was - "Your guess is as good as mine".

http://www.sgvtribune.com/government-and-politics/20140608/students-question-affirmative-consent-bill-designed-to-combat-sexual-assaults

MayBee said...

THe text of this law is incredibly short. There is no reason on earth any lawmaker voting on it shouldn't have read it.

It is important to talk about the law because there is no reason for this law, and no reason for it to apply to only college women with college "assaulters".

People need to be prepared to refute this when the people who started this try to roll it out to everyone.

MayBee said...

What problem did they think they were solving?

Anonymous said...

Given the number of quality engineering departments this idiotic law will apply to, the development of realistic robot-women will be sped up significantly.

Anonymous said...

ALSO Ann: Re - this has nothing to do with courts.

Same co-sponsor, same quote in full.

When asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”

wildswan said...

Did she / he keep giving affirmative assent?
Answer. Yes she did. Yes she did keeping saying yes. Yes, she did.

Men
Learn this answer. Give it. Stick to it. Remember truthieness is the new true.

MayBee said...

When asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”

The co-author of the bill!

That is repulsive!

Thanks for the link, sezneg. Who thinks this is acceptable?

tim in vermont said...

"Who thinks this is acceptable?"

How about the state that voted in Nancy "We have to pass the law to find out what is in it" Pelosi and all supporters of Obamacare?

Larvell said...

What if your concept of existence, of meaning, of the universe, and of the mystery of human life does not involve continually nodding your head or saying "yes" throughout the most intimate of human encounters? Can someone ask Anthony Kennedy what he thinks?

Bruce Hayden said...

What problem did they think they were solving?

The Dems potentially losing the Senate this year, and maybe Hillary! Not winning in two years.

Far fetched? Many believe that the entire War on Women is battlefield prep for a Hillary! Run in 2016 and Presidency. Rush suggested today that we can expect that after any criticism of Obama being considered racist, it will come as no great leap to treat any criticism of Hillary! As sexist.

Also, the War on Women right now is supposed to gin up support for Dem candidates by single women, and esp those dependent on the govt for support (e.g. Obama's Julia). Cranking up the Black vote here isn't going to be that helpful, in keeping the Senate, due to where the large concentrations of Blacks live. But women live everywhere, which makes them perfect for the type of no-information voters the Dems need to turn out at election time.

BTW - lest anyone think that the Dems have forgotten about scaring these women by claiming that Reps want to steal their lady parts, let me assure you that those attacks are maybe more blatant than ever. For example Dem groups backing Udahl in CO are countering opposing commercials pointing out his voting record, supporting ObamaCare, etc with scare commercials about his opponent backing a personhood, thus threatening free abortions for all women.

Brando said...

This was on a lot of "feminist" wish lists, and is a reaction to the questionable "1 in five women on campus being raped" statistic. The idea here is it will be easier for schools to kick out men who are accused of sexual assault, because now they can't say "she never told me no".

Even by that standard, though, this will be a mess--anyone willing to actually rape a woman (and not wishing to be booted from campus) will obviously lie. I mean, if you'd lie about hearing a woman say "no", why wouldn't you lie about not hearing her say "yes"?

Then of course if the schools do start kicking guys out on this new standard, the guys will obviously sue the school, and find some test cases where two people accuse each other of rape (raise your hand if the last time you had sex you kept asking every ten seconds whether the other party still consented), and other ridiculous but completely plausible scenarios that will test this idiotic new rule. Trial lawyers may benefit from it, and "feminist" groups will feel like they've done something even though this change will prevent exactly zero rapes.

But then, "feminists" haven't really been about results so much as furthering their own victimhood narrative to support their political ambitions. What's a few inconvenient rape victims against the furthering of these goals?

Smilin' Jack said...

"I have kissed my wife while she was sleeping. Wouldn't that be considered sexual assault according to this law?"

No. The law defines "affirmative consent" and require that it be the standard for colleges and universities that accept money.

Unless you're a college student, this doesn't apply to you.


It should at least apply to faculty and administrators as well. I'm sure they'd welcome the chance to lead by example.

Anonymous said...

What if male students started to accuse female (or gay male) professors or administrators? The law says the policies must apply to any incident "involving a student." This would be an easy way to pick-off someone you wanted to get rid of.

If advantaged groups are suddenly subject to the kangaroo "victim centered" procedures, the law will fall very shortly thereafter.

Joe said...

I understand this law also requires schools to use the preponderance-of-evidence standard. If so, how is this remotely constitutional? You may say this is civil action, not criminal, but the colleges affected are an extension of the state.

Birkel said...

Althouse:
"Unless you're a college student, this doesn't apply to you."

Pastor Martin Niemöller:
"First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

"Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

"Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

"Then they came for me—and there was no one left to speak for me."

Your play, Althouse.

Fred Drinkwater said...

Althouse:
"Unless you're a college student, this doesn't apply to you."

So it does apply, then, to married (and cohabiting) couples who are both students, and perhaps also student - faculty couples.
There are a surprising number of these. There's a reason why Cal, for instance, had Married Students Housing buildings (I don't know if they are still there; that was many moons ago.)
So the example of the husband kissing the sleeping wife is probably occurring daily, in real life on campuses in California. To the extent that life in CA can be called real anymore - "surreal" seems to capture the zeitgeist better, somehow.

The Godfather said...

I'm much too old for this to affect me personally, even if it were extended to the general population, and even if it were enacted in North Carolina.

But still:

I do remember youth and love and lust. Has it really changed so much that people can seriously talk about "obtaining affirmative consent" at "every stage"? Sex should take your breath away, it should overwhelm your rationalizations, it should lift you into celestial and primitive realms. If it becomes instead a matter of negotiation and verification, you'd be better off masturbating.

Drago said...

t-man: "If advantaged groups are suddenly subject to the kangaroo "victim centered" procedures, the law will fall very shortly thereafter."

The left will not allow advantaged groups to be subject to these "rules".

These "rules" are for the sole purpose of attacking non-advantaged groups.

As are all laws/rules enacted by the left.

Vesparado said...

Given the language chosen, the key to safety is to be the first one to file a rape charge. When I first realized this I didn't contemplate doing so in the midst of the sexual act; this could be quite complicated (unless one were doing it in a police station or, if a student, a dean's office). Perhaps the solution will be an app for iPhone and/or Apple Watch...

stlcdr said...

Wasn't withholding sex, or some such thing, defined as sexual assault, somewhere?

Achilles said...

The economy is not growing because of easily predictable results of progressive policies.

The foreign policy implemented by the administration is failing in predictable and all possible ways.

Time for a squirrel.

A little fascism goes a long way. They should put the IRS in charge of this although that removes an excellent chance to hire a new bureaucracy.

Fred Drinkwater said...

I saw this at Insty this AM:
An app is out there already: Good2Go

http://www.nydailynews.com/life-style/app-lets-users-give-consent-raises-privacy-concerns-article-1.1958177